O.W., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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O.W. appealed a restitution order requiring him to pay $4,915.00 for grand theft victims. The court reversed because the only evidence supporting the restitution amount was the victim's hearsay testimony of a jeweler's estimate, which failed to meet the State's burden of proving restitution with competent, substantial evidence.
The court held that the victim's testimony was hearsay because it was merely her recitation of the jeweler's estimation of value, which is insufficient to support a restitution order. While property owners can testify to value, such testimony must be based on their own opinion or assessment, not solely on what someone else estimated.
[1] The State bears the burden of proving the amount of restitution with competent, substantial evidence.
[2] A victim's testimony regarding a jeweler's estimate of replacement cost for stolen items constitutes hearsay and is insufficient, without more, to support an order of res…
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Join FLexlaw to unlock all legal intelligence“The State bears the burden of proving the amount of restitution with competent, substantial evidence.”
Establishes the State's evidentiary burden for restitution orders
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Join FLexlaw to unlock all legal intelligenceO.W. was convicted of grand theft of jewelry. At the restitution hearing, the victim and property owner testified that she researched the internet for…
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In this appeal, O.W. challenges the trial court’s order requiring him to pay $4,915,00 in restitution to the victims of his grand theft, arguing there was insufficieht evidence to support the amount ordered. We agree and reverse for a new hearing.
At the restitution hearing, the victim and owner of the missing jewelry was the only person to testify. She testified that after researching the internet and finding pictures of the missing items (some exact replicas and some similar to the missing jewelry), she took the pictures td a jeweler who then gave her an 'estimate of how much it would cost to replace the items. The owner further testified that she did not place the value on the missing items, but was testifying only as to wh'at the jeweler’s estimate said the- replacement cost of the items would be.
O.W. argues that the owner’s testimony was hearsay ■ and should not have been admitted, leaving the State with no. evidence to support the amount of restitution ordered. We agree. The State bears the burden of proving the amount of restitution with competent, substantial evidence. DJR v. State, 139 So.3d 458 (Fla. 1st DCA 2014). Here', the State failed to meet its burden because the only evidence presented to support the amount , of restitution ordered was the victim’s testimony of what the jeweler estimated the replacement cost of the missing items to be. See Bigelow v. State, 997 So.2d 1249, 1250 (Fla. 5th DCA 2009) (“Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to' such evidence.”). While “[a]n owner of property is generally *656qualified to testify as to the value of his or her property,” A.G. v. State, 718 So.2d 854, 856 (Fla. 4th DCA 1998), the owner’s testimony of value must be their own opinion or assessment of value, although they may take into consideration other sources to supplement and support their own knowledge of the value of the property. See id. (holding that the owner’s own estimate of value that was “based on what his jeweler and his wife had told him” was sufficient to support the order of restitution); see also Yaun v. State, 898 So.2d 1016 (holding that the owner’s assessments of the value of the stolen items based on her own research was sufficient to support the amount of restitution imposed).
The only evidence to support the amount of restitution imposed in this case was the owner’s testimony, which in turn was based solely on what the jeweler said. We are sympathetic to the victims of stolen property where, as here, the victims performed research and sought help from someone qualified to tell them how much it would cost to replace the missing items. But precedent says a witness’s mere recitation of someone else’s estimation of value is insufficient to support an order of restitution. “On remand, written estimates may ■ suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested.” Conway v. State, 115 So.3d 1058, 1059 (Fla. 4th DCA 2013) (quoting I.M. v. State, 958 So.2d 1014, 1015 (Fla. 1st DCA 2007)).
REVERSED and REMANDED.
WOLF, RAY, and MAKAR, JJ., CONCUR.
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Citator
Authorities Cited
- A.G. v. State, 718 So. 2d 854 (Fla. 4th DCA 1998)
- I.M. v. State, 958 So. 2d 1014 (Fla. 1st DCA 2007)
- Yaun v. State, 898 So. 2d 1016 (Fla. 4th DCA 2005)
- Conway v. State, 115 So. 3d 1058 (Fla. 4th DCA 2013)
- DJR v. State, 139 So. 3d 458 (Fla. 1st DCA 2014)
- Bigelow v. State, 997 So. 2d 1249 (Fla. 5th DCA 2009)